Let's not gloss over Title IX's faults

Common sense reform could restore the original intent of the law and do away with gender quotas.

ByAllison KasicJune 26, 2008

Washington — Title IX has done wonders for women by opening school athletics to them throughout the nation. And as the landmark gender discrimination legislation turns 36 this week, it might be tempting to use the occasion to laud those wonders. But we need to move beyond praise and address the unintended negative consequences the legislation has had on men and on gender equality in general – without erasing the gains women have won.

The problem lies not with the statute itself, but rather its enforcement.

When Title IX was being debated in Congress at its inception, several sponsors assured their fellow members that the bill would not be used to promote gender quotas. Sen. Birch Bayh said that such quotas were "exactly what this amendment intends to prohibit." Quotas might not have been intended for the original law, but, in effect, were later added by government bureaucrats.

The original law simply states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Title IX rightly outlaws discrimination in educational programs. And its language does not require enforcing strict gender quotas in athletics. But that's just what's happening and it's a practice that threatens math and science programs, and attacks voluntary, single-sex education programs.

So, how did we get here? The scope of Title IX has expanded dramatically through a combination of court cases and government policy interpretations (mostly through the US Department of Education).

A 1979 interpretation established a three-prong test to show Title IX compliance. Schools could provide proportional representation in their programs based on enrollment, show a history of expanding programs for the underrepresented sex, or demonstrate that their programs meet the interest and abilities of the underrepresented sex.

Proportionality, however, is the only prong that provides a quantitative measure for schools to prove compliance. For example, if 51 percent of the student body is female, a school is considered to be in safe harbor if 51 percent of its athletes are female.

The other prongs are viewed more as temporary measures. They are also more subjective and leave schools vulnerable to lawsuits. It is no surprise then, that schools overwhelmingly see proportionality as the way to prove compliance.

But recent demographic shifts have made it increasingly hard for schools to meet proportionality's demands. Women now account for nearly 6 in 10 undergraduates nationally. That means that to achieve proportionality schools need to have nearly 6 in 10 of their athletes be female. Historically black colleges and universities have an even tougher challenge, as most have a near 2-to-1 female-to-male ratio.

Even when there is ample demand for female athletics on campus, there is often equal, if not greater, demand for men's athletics. Schools are often forced to cap roster spots for men or cut men's programs entirely to balance the numbers. Nonrevenue men's sports, like wrestling and gymnastics, have been particularly hard hit, while large-roster women's sports, like crew, have flourished.

In the long run, it is a disservice to gloss over Title IX's negative effects on male athletics.

A 2007 study by the College Sports Council looked at collegiate athletic participation data from 1981 to 2005. The numbers confirm Title IX's positive impact on women: female athletes per school rose 34 percent and women's teams per school rose 34 percent. On the flip side, men's teams dropped 17 percent while male athletes per school dropped 6 percent. The total number of women's teams has exceeded the total number of men's teams since 1995.

Thankfully, common sense reform measures could restore the original intent of Title IX. The Bush administration took a step in the right direction by offering a model survey to measure student interest in 2005, but it did not go far enough.

The Department of Education's Office of Civil Rights should work with schools to develop further guidelines for interest surveys and allow schools to base their programs on the results. In doing so, schools should meet the interest and ability of both sexes rather than just the underrepresented sex.

In the meantime, schools need to be more open about the effects of Title IX. Too often, schools hide behind factors, such as budget constraints, and will not even debate the issue.

Our students deserve a policy that is fair to both sexes. Only then will we have true gender equity.